Criminal Trial
MAKONESE J: On the 17th
of April 2016 during the evening hours, the deceased was at Sisonke
Quarter Bottle Store, Maphane Business Centre, Gwanda. The deceased
was aged 29 years at the time he met his death and was employed by
the Zimbabwe National Army as a soldier.
The accused was also at the
bottle store, drinking with his friends. The accused was 26 years old
at the time of the offence.
The accused appears in this court
facing a charge of murder. The state alleges that on the
aforementioned date the accused did wrongfully and unlawfully and
intentionally kill and murder Mthabisi Mthimkhulu (the deceased) by
stabbing him with an okapi knife.
The accused denies the charge and
avers that he stabbed the deceased in self defence.
The accused further raised the
defence of provocation and stated that the deceased person subjected
him to extreme provocation by attacking him with a beer bottle and
fists and that his reaction to the attack was clouded by emotion and
that he reasonably believed that his life was under threat. He went
on to state that he acted in the heat of the moment and took such
defensive action as was necessary to ward off the attack.
The state tendered into the
record a summary of the outline of the state case (exhibit 1). It
shall not be necessary to repeat the entire contents of the state
outline which now forms part of the record.
The accused tendered a defence
outline (exhibit 2). At the heart of the accused's defence is the
defence of provocation and self defence.
It is not in dispute that the
accused stabbed the deceased with a knife on his back and shoulder
inflicting fatal injuries that led to the death of the deceased.
Accused fled the scene after the stabbing on a bicycle and
disappeared into the darkness. Accused was to remain in hiding before
his arrest on 28th
May 2016.
The state produced a confirmed
warned and cautioned statement recorded from the accused person at
Gwanda and confirmed by a magistrate on 27th June 2016. The English
translation of the warned and cautioned statement is in the following
terms:
“I
committed a crime of murder using a knife while drinking some beer.
The name of the deceased is Mthabisi Ndlovu. When they started this
misunderstanding they were three of them. I rebuked them and two of
them took heed of what I was saying, but the deceased responded to
say, who do I think I am. I then got hold of him intending to take
him out, but the now deceased, again enquired as to who do I think I
am. He threw a bottle at me and I ducked. I then produced a knife and
stabbed him. The now deceased had earlier on got into the shop, and
when he wanted to get to the shop once again, I again stabbed him and
he died.”
The post mortem report was
tendered into the record by the state as exhibit 4. A duly registered
medical practitioner employed as a pathologist at United Bulawayo
Hospitals examined the remains of the deceased on the 18th
April 2016. The post mortem report is filed under number
329/325/2016. As a result of an examination conducted on the body of
the deceased the pathologist opined that the cause of death was;
(a) Hypovelimic shock;
(b) Rupture of anxillary and
braquial arteries (right side) haemothorax;
(c) Stabbing injury;
On external examination, the
pathologist observed the following marks of violence:
1. Wound (9x3.5cm) on the right
arm, with muscles exposition in this region;
2. Wound (5x2cm) on the right
back, to 8cm from right axillary region, to 17cm from the neck, to
7.5cm from longitudinal axis;
3. Wound (2.5x1cm) on the back of
the left scapular to 22.5cm from longitudinal axis on the back;
4. Abrasion on the left costal
cage;
On internal examination, the
pathologist made the following further observations;
Wound 1: Affected arteries on the
right arm (braquial artery) right side;
Wound 2: Affected axillary artery
(right side);
Wound 3: Is penetrating inside
thoraxic cavity and affected superior lobe of left lung. Haemothorax
(approximately 200ml);
An examination of the lung/pleura
revealed that there was a small rapture of the left lung (superior
lobe) and haemothorax.
These were the findings of the
pathologist which were set out in some detail in the post mortem
report. The findings are consistent with a knife stabbing.
The accused does not deny the
stabbing. It is his motivation and intention that has to be examined
by the court taking into account the evidence placed before the
court.
The State Case
The state led viva
voce evidence from
three witnesses.
First to testify was Sincengani
Dube. She is a female adult aged 35 years. She was at the material
time employed as a shopkeeper at Sisonke Quarter Bottle Store. She
knew the accused as a brother to the owner of the bottle store.
On the fateful day she was at
work. Around 7:30pm the deceased arrived at the bottle store in the
company of his friends including one Nkosiyethu Tshalibe. The
deceased asked the witness how many black label beers she had in
stock. The witness went behind the counter and counted the beer
bottles and confirmed that she had twenty-three black label beers.
The witness narrated that whilst this conversation was going on the
accused was standing in the shop on the other side of the counter. As
the deceased was walking out of the shop the witness observed the
accused grabbing the deceased by the neck and pulling him to the side
of the shop.
The witness said that she could
not see what happened at that stage as her vision was obscured by a
large speaker.
A little while later, the witness
heard the sound of beer bottles being smashed. The sound originated
from the direction where the deceased and accused were pushing and
shoving. The witness then saw the accused stabbing the deceased once
on the back just above the left shoulder. She also noticed that the
deceased was bleeding profusely from the left arm.
The deceased ran out of the shop
with the accused in hot pursuit.
After about 15 minutes accused
returned to the shop and when the witness enquired why accused was
behaving in such a manner, accused retorted that the deceased was
disrespecting him. The accused was still brandishing a knife.
The witness stated that there
were several patrons in the bottle store. She testified that when the
accused and deceased went behind the speaker and before she witnessed
the stabbing she heard the accused utter the following remarks:
“Ngizakuqeda
isisoja sakho lesi”
meaning “I will end your career as a soldier.”
The witness was subjected to
intensive cross-examination. She maintained her evidence and
confirmed that she had observed the accused stabbing the deceased. In
that regard she merely corroborated the accused's version that
accused indeed stabbed the deceased.
The witness was not controverted
in any material respects and her evidence reads well. We find that
she was a credible witness and her evidence is accepted by the court.
We did not detect any tinge of exaggeration in her testimony. She was
prepared to concede that she did not witness what transpired when the
accused and deceased went behind the speaker. The witness gave a
clear and precise account of what she perceived.
Lungisani Mathema
This witness resides at Agnes
Mathema's homestead in Gwanda. He knew both accused and deceased
before this incident as locals in the area. He was at Sisonke Quarter
Bottle Store on the day in question.
He testified that he did not
witness the stabbing of the deceased.
He met the deceased after he had
already been stabbed. The deceased was bleeding profusely and had a
deep cut on the right arm. He also noticed that the deceased had
another deep cut at the back above the shoulders.
The witness stated that at that
stage he heard someone screaming and when he sought to establish what
was happening he met the accused person who was holding a knife. The
witness ordered the accused to stop. The accused did not stop and was
complaining that deceased and his colleagues were not showing him
respect.
The witness then concerned
himself with the injured deceased. The witness organised for a
vehicle at his own expense for the ferrying of the deceased to
hospital. At that stage the deceased was not able to speak.
Mthabisi Ndlovu died at United
Bulawayo Hospitals on the 18th
of April 2016 as a result of stab wounds inflicted by the accused.
The evidence of this witness
corroborated the first state witness.
The witness met the accused after
the stabbing. The accused reiterated that he had stabbed the deceased
because he felt disrespected.
It is not entirely clear how and
why the accused felt humiliated to the extent of stabbing the
deceased several times.
The court accepts that the
evidence of this witness is an accurate reflection of what transpired
on the night in question. The accused was observed after the
stabbing, still holding the murder weapon. He admitted the stabbing.
We make a finding that the evidence of this witness is entirely
credible. He narrated what he observed. He did not testify on what
he did not witness.
Constable Robson Makwea
The state called its third and
last witness Constable Robson Makwea. He is a duly attested member of
the Zimbabwe Republic Police based at Gwanda Rural.
He testified that after receiving
information about the whereabouts of the accused person who had gone
into hiding after the stabbing of the deceased, he together with
other police detectives were dispatched to go and effect an arrest of
the accused.
The witness stated that they
located the accused at Simangele Dube's homestead where he had
sought refuge. They arrested the accused who promptly admitted having
committed the offence.
We were not impressed by the
evidence of this witness who appeared to have little or no
information regarding the case. The court found his evidence to add
very little weight to the state case. The court will therefore
conclude that the testimony of this witness is relevant to the extent
that it corroborates the fact that the accused has never disputed
that he stabbed the deceased.
The state then sought and
obtained authority to have the evidence of the under listed witnesses
as it appears in the summary of the state case, introduced into the
record by way of formal admissions in terms of section 314 of the
Criminal Procedure and Evidence Act (Chapter 9:07), namely:
(a) Nkosiyethu Tshalibe;
(b) Innocent Mpofu;
(c) Lloyd Makotore;
(d) Nicholas Paringira;
(e) Farai Nyakonda;
(f) Kudakwashe Victor Chivise;
(g) Dr I. Betancourt;
The state closed its case.
Defence Case
The state led evidence from the
accused, Herold Moyo. His version of events is that he arrived at
Sisonke Quarter Bottle Store around 7:00pm. He requested for a jersey
from the first state witness Sincengani Dube. He was given a jersey
and went out of the bottle store for about 45 minutes to an hour. He
came back in the company of a group of people. They sat down in a
corner and started drinking opaque beer commonly referred to as
“calabash” (a term derived from the type of container that
resembles a bottle gourd in which this type of beer is packaged).
The accused indicated that at the
time of the incident he was not yet drunk. He was in control of his
mental faculties to the extent that he did not attribute his conduct
to the consumption of the alcoholic beverage.
The accused testified that as
they were enjoying their drinks they observed that the deceased and
his associates were entangled in a misunderstanding with one Bheki of
Gwanda Vale. The accused stated that he immediately intervened and
remonstrated with Nkosiyethu and Nosizwe who were involved in the
pushing and shoving.
Accused said that he had
succeeded in defusing the fracas when the deceased stood up and
grabbed him by his hand and collar pushing against a wall. The
deceased asked the accused who he thought he was. The accused says
the deceased who was holding two beer bottles in one hand then threw
one bottle at him and he ducked. The accused contends that they
exchanged blows and he felt that he was being overpowered.
Accused said that in the heat of
the moment he produced a knife to defend himself. He stabbed the
deceased above the shoulders on three occasions. Accused averred that
he stabbed the deceased in random fashion and that he felt that he
was under imminent danger.
He did not realize that he could
cause the death of the deceased. He acted in self defence and under
serious provocation.
He admitted that he was
overwhelmed by anger, but did not intend to cause serious harm to the
deceased.
The accused confirmed that upon
realizing that deceased was injured and bleeding profusely, he jumped
on to a bicycle and fled the scene. Accused later learnt that the
injured person had succumbed to the stab wounds and died. He decided
to go into hiding. He was arrested a month after the incident at
Simangele Dube's homestead.
We found the accused's version
of events improbable for a number of reasons:
(i) Firstly, it is not clear from
the evidence why the accused was angered by the deceased. It is also
not clear why he felt that he was not being respected. He appeared to
have been harbouring some grudge against the deceased.
(ii) Secondly, the accused gave
the impression that he was a peacemaker who was protecting Bheki. The
evidence from the state witness shows that accused was in a violent
mood. He was alleging that he was not being respected. He was the
initial aggressor in that he blocked the deceased's path and told
him not to go behind the counter.
(iii) Thirdly, the accused was
not provoked to such a degree that he would reasonably been expected
to produce a knife. The accused was heard saying that he wanted to
end the life of the soldier. He therefore clearly intended the
consequences before the alleged fight.
(iv) Fourthly, the accused claims
that he acted in self defence. He was under attack and wanted to
extricate himself from deceased's hold. There is no credible
explanation why accused stabbed the deceased three times in the back
and on the left arm. The stab wounds were deep and penetrating. One
of the stab wound caused a rapture of the deceased's left lung. The
post mortem report shows beyond any doubt that the force used in
plunging the knife into the deceased's body was excessive. The
deceased evidently suffered serious wounds. After the stabbing the
deceased was chased around by accused like a wounded chicken and
eventually bled until he died.
We totally reject the accused's
version.
The evidence of Sincengani Dube
shows that the accused was the aggressor. There was no reasonable
cause for the accused to use a deadly weapon such as a knife. The
accused repeatedly and randomly attacked the deceased. He did not
stop to render assistance. He fled the scene.
The Law
In his book The
Guide to Zimbabwean Criminal Law,
Professor G. Feltoe discusses the distinction between positive or
actual intent and constructive intent or legal intent in a lucid
manner. The author characterises the distinctions as follows:
“Actual
intention
(a) Desires death. Death is the
aim and object; or
(b) Death is not the aim and
object but in the process of engaging in some activity foresees death
as a substantially certain result of that activity and proceeds
regardless as to whether this consequence ensues.
Legal intention
Does not mean to bring about
death but foresees it as a possibility whilst engaged in some
activity regardless as to whether death ensues:
(a) Subjective foresight;
(b) As to possibility not
probability;
(c) Recklessness;
For the court to return a verdict
of murder with actual intent the court must be satisfied beyond
reasonable doubt that:
(a) the accused's fixed and
settled intention was to bring about the death of his victim;
(b) while pursuing another, the
objective he foresees death of his victim as a substantially certain
result and proceeds with his conduct recklessly.
See the case of Robert
Mugwanda v The State
SC19/02.”
Provocation
In certain circumstances the law
recognizes that certain situations may arise where a person is
provoked to such an extent that he loses self control. In other words
to provide or act as a partial defence, it must be established, on
the facts that the provocation resulted in the accused failing to
control his mental faculties. Short of that, it constitutes no
defence.
Section 239 of the Criminal Law
(Codification and Reform) Act (Chapter 9:23) codifies the common law
position as follows:
“239
When provocation a partial defence to murder
(1)…
(2) For the avoidance of doubt it
is declared that if a court finds that a person accused of murder was
provoked but that –
(a) he or she did not have the
intention or realization referred to in section forty-seven; or
(b) the provocation was not
sufficient to make a reasonable person in the accused's position
and circumstances lose his or her self control;
the accused shall not be entitled
to a partial defence in terms of subsection (1) but the court may
regard the provocation as mitigatory as provided in section two
hundred and thirty-eight.”
In my view, the circumstances of
this case clearly show that the conduct of the accused was
disproportionate to the provocation alleged. If anything, the accused
was the aggressor. The defence of provocation is therefore rejected
by the court.
Self Defence
In our law the law of private
defence, that is, self defence and defence of third persons and
defence of property provides that a person is entitled to take
reasonable steps to defend himself against an unlawful attack.
G. Feltoe, in his book, Guide
to Criminal Law of Zimbabwe,
at page 45 states as follows:
“The requirements for this
defence are:
(a) An unlawful attack;
(b) Upon X;
(c) The attack must have
commenced or be imminent;
(d) The action must be necessary
to avert the attack;
(e) The means to avert the attack
must be reasonable.”
In deciding whether the defence
of self defence, is available to an accused person, the court must be
satisfied that the accused was under attack and that he was in
imminent danger.
The court examines all the
available evidence placed before it.
The court must not adopt an
arm-chair approach but must carefully consider all the circumstances
of the case.
In the instant case it is not
disputed that the accused was seen by Sincengani Dube blocking the
path of the deceased and challenging him as to why he was going
behind a counter. The accused was observed pulling the deceased by
the neck. Moments later, Sincengani Dube heard the noise of breaking
beer bottles.
It is not disputed that the
deceased suffered stab wounds inflicted by the accused.
On his own version, the accused
stated that he stabbed the deceased three or four times on the back
above the shoulder. The nature of the stab wounds are described in
detail in the post mortem report. The accused could not explain why
he stabbed the deceased several times if he was just defending
himself.
It is clear that accused exceeded
the bounds of self defence.
Accused said when he attacked the
deceased he was overpowered by anger. We reject the notion that
accused was acting in self defence, because he was clearly the
aggressor. He threatened to end the life of a soldier.
He achieved his purpose.
In terms of our law the defence
of self defence has been codified under section 253 of the Criminal
Law Codification and Reform Act, (Chapter 9:23), which provides as
follows:
“253
Requirements for
defence of person to be a complete defence
(1) Subject to this Part, the
fact that a person accused of a crime was defending himself or
herself or another person against an unlawful attack when he or she
did or omitted to do anything which is an essential element of the
crime shall be a complete defence to the charge if:
(a) When he or she did or omitted
to do the thing, he or she believed on reasonable grounds that the
unlawful attack had commenced or was imminent; and
(b) He or she believed on
reasonable grounds that his or her conduct was necessary to avert the
unlawful attack and that he or she could not otherwise escape from or
avert the attack; and
(c) The means he or she used to
avert the unlawful attack were reasonable in all the circumstances;
and
(d) Any harm or injury caused by
his or her conduct –
(i) was caused to the attacker
and not to any innocent third party; and
(ii) was not grossly
disproportionate to that liable to be caused by the unlawful attack.”
The means used by the accused to
avert the unlawful attack was not reasonable. The manner of the
attack shows a repeated stabbing using excessive force.
The accused was determined to
inflict serious injuries upon the deceased.
Even after the deceased had
escaped and was bleeding, the accused pursued him, whilst brandishing
the knife.
The circumstances of the case
clearly indicate that the defence of self defence is not available to
the accused. We accordingly reject that defence. See the cases of
Sibanda
v The State
SC-7-87; State
v Kanyowa
HH-10-04.
We are however, not satisfied
that the state proved beyond reasonable doubt an actual intention to
cause death.
The accused acted recklessly and
foresaw death as a real possibility of his conduct but proceeded
regardless. The accused must be found guilty of murder with
constructive intent.
In the result, the accused is
found guilty of murder with constructive intent.
Sentence
In assessing an appropriate
sentence the court takes into consideration all the mitigating
features of the case as highlighted by accused's legal counsel.
The accused is aged 26 years. He
is not married. He has no children. He is not employed and has no
savings. He has no assets of value.
The court takes into account that
accused is a first offender and that he has remained in remand
custody for the past 9 months. He has therefore served part of his
sentence.
The court takes into account the
fact that accused admitted stabbing the deceased. He did not totally
deny responsibility for his conduct. He did appear somewhat
remorseful for his actions.
On the other hand, the court
views with a dim view the fact that this was a barbaric and savage
attack upon the victim.
After stabbing the deceased
accused chased him around like a wounded chicken. There was no
justification for such reprehensible conduct.
The court frowns upon persons who
choose to use violence as a way of life. This primitive behaviour
must be punished heavily by the courts. The court views seriously,
the loss of any life.
The accused was clearly the
aggressor and yet he pretended to have played the role of a
peacemaker who was wronged by the deceased.
The deceased who was employed as
a soldier lost his life at a time when he was at the prime of his
life.
These courts will continue to
impose severe penalties on persons who act violently and recklessly
towards others.
Bottle stores and bars are places
where people are supposed to drink peacefully and yet these places
are turning to be dangerous battle grounds where people are stabbed
and killed in violent fashion.
The moral blameworthiness of the
accused is extremely high and that should reflect in the sentence
imposed by this court.
The following sentence is
appropriate in all the circumstances of this case and the following
is ordered:
“Accused is sentenced to 25
years imprisonment.”
National Prosecuting Authority,
State's legal practitioners
Legal Aid Directorate,
accused's legal practitioners
